The Government has launched a consultation into the role of issuing apologies in civil proceedings. It asks whether further measures should be taken to encourage parties to issue apologies without the fear of admitting liability or weakening their case.

As the consultation explains, there are those who believe that apologies can “truly change atmospheres…apologies can often unlock disputes and lead to settlements without recourse to legal action”. It goes on to say that this can be particularly true in cases of abuse or clinical negligence, where a meaningful apology can “have the potential to avoid litigation altogether”.

This is not the first time that the Government has considered the law relating to apologies. Encouraged by the experiences of ‘apology legislation’ in other jurisdictions, the Compensation Act 2006 included in its section (2) that “an apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty”. As the consultation documents explains, this provision was included to “encourage businesses, insurers, and other organisations not to be deterred from offering apologies by a perception that doing so would necessarily constitute an admission of liability”.

However, despite the introduction of the Compensation Act 2006, the consultation notes that few organisations have in fact taken up the opportunity to issue apologies, perhaps because of “residual concerns that an apology may amount to an admission of liability and be relied upon in civil litigation” or a worry that an apology might invalidate any insurance that the organisation might have.

As a result, there have been calls for the legislation to be revisited. In 2019, a Private Member’s Bill was introduced which called for the legislation to be brought in line with the Apologies (Scotland) Act 2016, which is more detailed than the Compensation Act 2006, applies to a wider range of proceedings (albeit not defamation cases or public inquiries) and includes a statutory definition of an ‘apology’. Similarly, the Independent Inquiry on Child Sexual Abuse recommended that the Compensation Act 2006 should be amended so that it explicitly covered apologies in cases involving vicarious liability.

The consultation seeks views on whether such changes should be made to the existing legislation. However, it also recognises that securing Parliamentary time for new legislation may be difficult and therefore asks for views on other mechanisms that might achieve a similar result, such as the issuing of new guidance.

The consultation is open until 3 June 2024 and more information can be found here.